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UNC has mounted a compelling response to NCAA notice of allegations
The academic fraud case that has dragged on for most of this decade will culminate in August with a showdown between North Carolina's lawyers and the NCAA enforcement staff before the NCAA's Committee on Infractions. Thanks to documents released Thursday, we know exactly what each side will argue.
This may sound crazy given the depth and the scope of the academic fraud that North Carolina officials have already admitted took place, but the school's response to NCAA's third notice of allegations suggests that North Carolina's attorneys have mounted a compelling defense in this case. That may not matter in a process famous for being made up as it goes along, but it's important to note as the NCAA's existential crisis continues.
All reasonable people can agree that the scandal at Baylor—that resulted in the firing of football coach Art Briles and president Ken Starr and the eventual resignation of athletic director Ian McCaw—is far worse than anything that happened at North Carolina, Louisville or Ole Miss—the other high-profile schools with recent scandals. But the NCAA has no rule to deal with what happened at Baylor. The organization looks toothless enough because it has no mechanism to deal with the biggest problem, and it is under pressure from other members to take decisive action in cases involving academic integrity (North Carolina), using naked women to lure recruits (Louisville) and giving athletes money, goods and services for being good at sports (Ole Miss). North Carolina's attorneys claim a media narrative has kept the heat on North Carolina. The truth is North Carolina's fellow schools have applied the pressure. The NCAA also is under intense pressure from the membership to strike hard in the Ole Miss case, but the NCAA definitely has applicable bylaws to use in the Ole Miss case. North Carolina's attorneys will argue that the NCAA had no applicable bylaw when the academic fraud took place in Chapel Hill, and they may be correct.
For years, the NCAA didn't want to wade into the murky waters of determining what is or isn't academically sound. It left such determinations up to accrediting agencies. (It should be noted that in this case, North Carolina was placed on probation for a year by its accrediting agency.) This is why the NCAA did nothing about Tennessee's Chair Stacking 101 classes in the late 1990s or Auburn's directed reading classes in the early 2000s. Every large university has easy classes available to everyone, and most major athletic departments cluster revenue-sport athletes into easy majors. These cases were ignored for a reasons: The NCAA didn't have clear rules in place to enforce them. In fact, if North Carolina's attorneys really want to twist the knife during the COI hearing, they'll quote what attorneys representing the NCAA wrote in a 2015 response to a lawsuit brought by former North Carolina athletes regarding the quality of the education they received. According to that response, the NCAA has no legal responsibility "to ensure the academic integrity of the courses offered to student-athletes at its member institutions.”
North Carolina is accused of a Lack of Institutional Control, which is not an NCAA rule in and of itself but a state of being an athletic department or school might reach by willfully ignoring too many violations of NCAA bylaws on campus. It's important to note the bylaws NCAA investigators have accused the Tar Heels of breaking. For easy-breezy classes in the African and Afro-American Studies department from 2002-11—the classes actually date back to 1993 and involved 3,100 students, but the NCAA is concentrating on this timeframe—that required no attendance and a single paper and allowed hundreds of athletes to remain academically eligible when they otherwise might not have been, the NCAA has accused North Carolina of violating the ethical conduct bylaw and the bylaw that forbids extra benefits.
Shouldn't an academic fraud case revolve around the violation of bylaws that forbid academic fraud? Well, it might if there were any such rules in the NCAA's manual when these classes were offered. But the rules regarding academic integrity were murky at best, something attorneys Rick Evrard and Bob Kirchner Bond, Schoeneck point out early and often in the 106-page response that North Carolina submitted to the NCAA earlier this month. “Because the issue of the Courses is an academic issue, the University denies that there were NCAA violations,” the attorneys wrote. They also correctly point out that these classes were available to all students and thus can't be considered benefits that were available to athletes and not the general student body. The enforcement staff will argue that a disproportionate number of athletes took the classes (true) and that athletes were funneled into the classes. The enforcement staff likely will bring out this Powerpoint slide in an attempt to prove that North Carolina's academic advisors for athletes made a concerted effort to funnel athletes into these classes, and it likely will help their argument immensely.
North Carolina's attorneys will argue that advisors for members of the general student body did the same thing, and they also won't be wrong. Anyone who has attended a large public university knows that the identity of the easiest classes is one of the worst-kept secrets on campus.
The enforcement staff also has the unethical conduct charge at its disposal, and that one actually does include language about academics. Specifically, it forbids “knowing involvement in arranging for fraudulent academic credit or false transcripts for a prospective or an enrolled student-athlete.” Three people who were North Carolina employees at the time the classes were offered were named in the notice of allegations: Julius Nyang'oro, the chair of the AFAM departement; Deborah Crowder, the AFAM department administrator; and Jan Boxill, a philosophy professor and the women's basketball academic counselor.
Kenneth Wainstein, the former Homeland Security advisor hired by to investigate the classes, published a report in 2014 detailing how the classes came to exist and how they came to be used. Wainstein's team interviewed Nyang'oro and Crowder and described a “shadow curriculum” (Wainstein's term) in which Crowder created paper classes that were eventually disguised as lecture classes. In Wainstein's report, Crowder is characterized as a huge fan of the North Carolina men's basketball team and the mastermind behind the paper classes. Nyang'oro is painted as an absentee manager who allowed Crowder to handle the program. In an affidavit sent to the NCAA in March, Crowder said she created the classes to help students of every stripe. Presumably, she said the same thing when she spoke to NCAA investigators in earlier this month.
It will be up to COI members to determine whether they believe Crowder offered any sort of special assistance to the athletic department, and the Lack of Institutional Control charge likely will hinge on that finding. But North Carolina attorneys will point out that neither Crowder nor Nyang'oro worked in the athletic department. Neither did Boxill, but at least she has an official connection to the women's basketball team. That puts that squad squarely in the COI's crosshairs, but let's be honest, this is a big deal because it involves the revenue sports of football and men's basketball. The enforcement staff will have to prove that athletes in those sports got a special hookup, and there is no one associated with those teams named in the NOA.
North Carolina's attorneys have framed the case as well as they possibly could. The Wainstein Report and common sense suggest that athletes were shuttled into these easy classes to keep them eligible, but according to the bylaws involved here, the NCAA enforcement staff must prove either a conspiracy by North Carolina employees to offer fraudulent credit specifically for athletes or a scheme that allowed athletes to receive benefits other students didn't get. The enforcement staff can't prove the second because it isn't true, so it will have to focus on the first. At least, that's how things would work if the COI was a court of law. It is not. It doesn't need proof beyond a shadow of a doubt. It doesn't always follow precedent.
That's what makes this case so difficult to predict. North Carolina has mounted a defense that has worked in the past, but with the association under pressure to do something about something, no one knows how the COI will respond.
